27 September 2016

South Africa: Political Interference Weakening the Rule of Law in SA

analysis

One of the founding values of democratic South Africa is 'the supremacy of the constitution and the rule of law'. The World Justice Project defines 'rule of law' as 'the process by which the laws [in a democracy] are enacted, administered, and enforced is accessible, fair, and efficient'. This means that the level of a country's democracy is determined by its adherence to the basic principles in which all people - regardless of their economic or political status - are subject to equal legal rules.

This principle is critically important for the success of any country. It provides a clear national system that is to be applied fairly to every group and person. Without this, the system will increasingly lose credibility and public trust. Criminality and instability increase; putting everyone at risk.

The criminal justice system is the cornerstone for ensuring the rule of law functions in an effective and healthy way. This is why South Africa's constitution places primacy on the independence of various institutions, such as the National Prosecuting Authority (NPA), the Hawks and the Independent Police Investigative Directorate (IPID).

Over the past few years, the conduct of various prominent officials within the criminal justice system has severely undermined this constitutional principle and the very foundation of our democracy. Following careful consideration of the hard evidence before various courts, a number of judges have independently questioned the integrity and conduct of some of our most senior officials.

In the most recent of a long line of such judgments, Judge Francis Legodi of the North Gauteng High Court in Pretoria delivered a scathing judgment during which he struck the names of Advocates Nomgcobo Jiba and Lawrence Mrwebi from the roll of advocates. Both these officials serve as Deputy National Directors of the NPA; Jiba as Head of the National Prosecuting Services (NPS), and Mrwebi as Head of the Specialised Commercial Crimes unit.

All South Africans rely on the individuals who occupy these posts to exercise their considerable powers in tackling organised crime and corruption. However, it has emerged through various court cases and legal processes that Jiba and Mrwebi have instead seemed to use their powers to protect various individuals facing serious criminal allegations; rather than in the public interest.

Following careful consideration of the evidence, Jiba and Mrwebi stand accused of acting to hinder or prevent the prosecution of prominent persons such as President Jacob Zuma and Lieutenant General Richard Mdluli - the head of the South African Police Service's (SAPS') Crime Intelligence Division. Mdluli has been inexplicably suspended on full pay with all perks since 2012 while facing criminal prosecution for a raft of crimes ranging from murder to corruption.

Many police officials have been disciplined and dismissed from the SAPS for far lesser incidents of misconduct, and with far less evidence available. That senior police and NPA officials have all gone out of their way to prevent Mdluli's investigation and prosecution seems to point to a hidden network of profoundly dishonest individuals within the criminal justice system, who have either been appointed, or are acting with the primary purpose of protecting certain powerful people from criminal sanction.

It has been alleged that a central figure in this unholy alliance is Lt Gen. Mdluli; who is allegedly dedicated to protecting Zuma and those close to him from investigation and prosecution. It is alleged that this is the primary reason why Zuma has not been effectively held accountable for the many cases of criminal and unethical conduct that have been levelled against him.

It has been reported that Zuma attended a party hosted by Mdluli in December 2011 to celebrate the illegal withdrawal of corruption and fraud charges against him by the NPA. Mdluli was irregularly appointed to his position as head of Crime Intelligence on 1 July 2009, two months after Zuma's ascendency to the Presidency following a clandestine meeting of four of Zuma's loyal ministers - including then minister of police, Nathi Mthethwa, and his deputy, Susan Shabangu.

Against accepted protocols for appointing someone to such a sensitive post, there were no senior SAPS officials present at the meeting that preceded his appointment; and Mdluli was not subject to the necessary evaluation or vetting. Then acting national commissioner Tim Williams declined the invitation to attend, given that it flouted accepted appointment procedures. Williams later publicly criticised the process as irregular and the appointment as politically motivated.

Despite reported efforts by Mthethwa to halt all criminal investigations and disciplinary action against Mdluli, the crime intelligence boss was eventually suspended following a successful court application by the NGO, Freedom Under Law. There are, however, strong allegations that despite his suspension and criminal prosecution, Mdluli is still actively directing SAPS Crime Intelligence resources to influence political events.

A similar example is the latest appointment of the head of the Hawks, Lt Gen. Berning Ntlemeza. A warning statement by Innocent Khuba - the suspended provincial head of IPID, who was charged for defeating the ends of justice - alleges that Ntlemeza was long earmarked for this important post by powerful political individuals.

According to Khuba, he was asked in October 2012 to investigate the alleged involvement of the previous head of the Hawks, Lt Gen. Anwa Dramat, along with Gauteng Provincial head Major General Shadrack Sibiya, in relation to the alleged illegal rendition of Zimbabwean citizens to the Zimbabwean police in November 2010.

According to Khuba, Ntlemeza told him his 'political principals' wanted him to become head of the Hawks as far back as 2012 following a 'hit' to remove Dramat from his post. It has been alleged that Dramat fell out of favour after pursuing various politically sensitive criminal cases implicating individuals close to the president.

Both Dramat and Head of the IPID, Robert McBride, were illegally suspended by the Minister of Police, Nkosinathi Nhleko, who suddenly wanted them removed following their attempts to pursue such investigations. Dramat took a generous payout to resign and McBride successfully fought the attempt at removing him in the courts. Ntlemeza was appointed by Nhleko despite not being properly assessed for competency, and a High Court judge finding that Ntlemeza was dishonest and dishonourable.

Attempts to remove honest professionals and appoint dishonourable and incompetent people at the highest echelons of the criminal justice system have severely undermined the rule of law in South Africa.

Corruption and organised crime, by all accounts, have increased substantially since Zuma came to power, and he himself has been able to avoid prosecution despite hard evidence supporting 783 criminal charges of corruption, fraud, money-laundering and racketeering.

All South Africans are worse off for it, as there is less public money for services such as education; and more people are murdered or attacked on the street and in their homes. Let's hope that the changing political environment will result in a system where only the best and most honest people are appointed to fight crime. Until that happens, we will all be worse off while those involved in crime and corruption will continue to thrive.

Johan Burger, Consultant, Governance, Crime and Justice Division, ISS Pretoria

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